Central Administrative Tribunal - Delhi
Dr. V.S. Rao Chintala vs Ms. Alka Sirohi on 12 September, 2014
Central Administrative Tribunal Principal Bench CP No. 644/2011 OA No. 2296/2009 New Delhi this the 12th day of September, 2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) 1. Dr. V.S. Rao Chintala, S/o Sri Venkateswar Rao, D-1/A-08 HUDCO Place Extension, Andrews Ganj, New Delhi-110049 2. Dr. V.Sampath, S/o Shri K.Varadarajan, IAS (Retd.) Presently residing at C9/100, Kendriya Vihar, Poonamaliee High Road, Velappanchavadi, Chennai-600 077, Tamil Nadu 3. Shri TVP Bhaskara Rao, S/o T.Sanjeeva Rao, Presenting residing at TF-1, Chase Enclave, Mundvel, Vasco Da Gama, Goa-403802 4. Dr. KJ Ramesh, S/o K Jayaram Chetty, Presently residing at D-1/G-41, HUDCO Place Extension, Andrews Ganj, New Delhi-110 049 5. Dr. M.Sudhakar, S/o M Subbaramaiah, FF1, Home Craft Building No.6, Techno Park, Chogam Road, Porvarim Goa-403521 -Applicants (By Advocate: Shri R.P. Kapoor) -VERSUS- Ms. Alka Sirohi, Secretary to the Government of India, Department of Personnel & Trailing (DoPT), North Block, New Delhi-11 001 -Respondent (By Advocate: Shri RN Singh) O R D E R (Oral)
Justice Syed Rafat Alam:
This is an Application for initiating contempt proceedings against the respondent for the alleged willful disobedience of the directions given by this Tribunal vide order dated 04.08.2010 in OA No. 2296/2009.
2. We have heard the matter at length.
3. Shri R.K. Kapoor, learned counsel for the applicants, submitted that despite the Tribunals clear cut directions to consider each of the applicants case for in situ promotion under FCS to Scientist-G grade according to their fulfillment of the residency period from the date of their eligibility, the respondents, though considered their case and found them eligible from an earlier date but promoted from the date of approval of the ACC, which is not true compliance of the order in its letter and spirit. He further submitted that from the own showing of the respondents, they have found applicant no.1 (Dr. VS Rao Chintala) eligible w.e.f. 01.07.2004, applicant no.2 (Dr. V Sampath) w.e.f. 01.01.2002, applicant no.3 (TVP Bhaskara Rao) w.e.f. 01.97.2003, applicant no.4 (Dr. KJ Ramesh) w.e.f. 01.07.2004 and applicant no.4 (Dr. M.Sudhakar) w.e.f. 01.07.2006, but have given them promotions w.e.f. 09.08.2005, 09.08.2005, 09.08.2005, 05.10.2006 and 07.08.2007 respectively.
4. On the other hand, Shri RN Singh, learned counsel for the respondent, relied upon various authorities, including judgments of the Apex Court in the matters of J.S. Parihar Vs. Ganpat Duggar & Ors. (1996) 6 SCC 291 and State of Haryana & Ors. Vs. M.P. Mohla, (2007) 1 SC 457 and submitted that though as per their stand, the respondent has implemented the aforesaid order of the Tribunal in its letter and spirit, but if the applicants are still aggrieved by Office Order dated 12.10.2012, they may challenge the same by filing a fresh Original Application under Section 19 of the Administrative Tribunals Act, 1985.
5. We have considered the rival conventions of the parties. It appears from the pleadings that the applicant had sought the following reliefs in the OA:-
(a) Allow the Original Application and direct the respondent authorities to antedate the award of promotion to the applicants as per their respective eligibilities listed at para (v) above.
(b) Pass order granting any other relief which this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
(c) Award costs to the applicants against the respondents including the cost of litigation.
It further appears from the perusal of the OA that in the grounds in support of the reliefs, the applicant has urged as under:-
(v) That there are a number of cases where the requisite grades/promotions have been granted retrospectively. Some of the cases which were awarded grades/promotion retrospectively from the date of eligibility for award of promotion to next higher grade, have been given below:
1. Through the Office Order No.110 dated 17th May, 2004, the promotion under FCS to the grade of Scientist-G, in respect of Dr. S. Kathiroli, of the National Institute of Ocean Technology, Chennai of DOD, was granted retrospectively from 1st July, 2003. Other such cases that have been awarded promotions at different grades under FCS retrospectively have been annexed with the Original Application.
2. Vide Central Administrative Tribunal (CAT) decision No.OA 2000/1996 dated 09.03.2000, such anomalies are rectified by the Government and promotions of Scientists to the next higher grade under FCS with effect from due date have been granted/awarded retrospectively in spite of the Competent Authority not approving promotion from the retrospective date.
Despite representations, the applicants were not granted the promotion retrospectively from the date to which they were entitled to. Further since the cause of action in favour of the applicant is continuous one, the respondents are liable to be directed to grant promotion to the applicants from the respective retrospective dates.
6. The Tribunal while deciding the issue dealt with the case of each applicant individually, and compared the case of the applicants with the case of Scientists promoted in the Department of Ocean Development and that of Earth Development, and found that ante-dating of promotion was sanctioned in their cases, but in the matter of the applicants promotion under the same scheme, this principle has not been followed, and observed that the respondent Government is required to follow uniform principles and cannot be favourable for one group in one department against others in other departments, and, thus the applicants being similarly placed have been discriminated. The Tribunal, in the circumstances, in para 15 in its order issued the following directions:-
15. Considering the facts and circumstances of the case and statutory provisions available to the in situ promotion and our detailed analysis on the issues, we direct the Respondents to consider each of the Applicants case for in situ promotion under FCS to Scientist-G grade according to their fulfillment of the residency period. If they are found eligible, they should be granted in situ promotion to the grade of Scientist-G with effect from 1st January or 1st July of the respective year, they are found to be eligible and the consequential benefits would accrue to them. The Respondents are further directed to review the case of the Applicants through appropriate Committee/Board as per FCS and such exercise should be completed within a period of three months from the date of receipt of a certified copy of this order.
7. The Court has already held that the case of the applicants is at par with those from the Department of Ocean and that of Earth Sciences and in that respect, where the benefits have been granted to a number of Scientists from the date of their eligibility arising. The court has further directed consideration of each case of the applicants for FCS to Scientists Grade G w.e.f. 1st July of their respective year subject to they being found eligible.
8. We find that the cases of the applicants have been considered vide their orders dated 12.10.2012 in respect of all the five applicants individually. We also looked into some of the orders as have been referred to by the learned counsel for the applicants. For instance, in case of Dr. V.S. Rao Chintala, we find that while he has claimed eligibility from 1.1.2002, the case had been considered by the Screening Committee and as per FCS 85% requirement , he had only scored 40.4% grading in 2001, 50% against grading requirement of 80% in 2002, 54.4% against grading requirement of 75% and 57.7% against grading requirement of 70% in 2004. However, the screening committee considering the cases under FCS took a lenient view and held that the NRC factor gave benefit to the Scientists. The period of residency can be relaxed on any single occasion up to an year in the case of exceptionally meritorious scientists with all outstanding, grading but such relation will be limited to a maximum of two occasion in the entire career of a scientist.
9. However, in the case of Dr. Sampath, Scientist-G, the eligibility arising out from the year 2002 while he has been granted FCS w.e.f. 9.8.2005. The explanation that appears to be forthcoming in the case of Dr. Sampath is that he had not submitted his ACRs as on 26.11.2002. His ACRs for the period of 2000-01 and 2001-02 were reviewed by the then Honble Minister for Science & Technology on 20.04.2004. It may be mentioned that the ACR for 2000-2001 was not reported upon. Similarly, the ACR for 2002-2003 was also signed by the Minister on the date of 20.04.2004. It is pertinent to note that review date for 3 ACRs is 20th April, 2004. After receiving the ACRs the process was duly followed as mentioned in para 3 above.
10. Here we find that the direction was for consideration within the given guidelines subject to eligibility following the due process established by this Scheme. Where the degree of compliance is disputed by the parity, this Bench of the Tribunal will be required then to revisit the arguments in the OA and to test the factum of compliance in respect of which a detailed order will be required to be recorded after having taken the arguments of both the parties under consideration. This will amount to re-hearing the case and modifying the order passed on 04.08.2010 in OA No. 2296/2009. This is obviously not within the scope of contempt. Contempt arises out of offence of willful disobedience or disrespect towards the court of law and its officers in the form of behavior that opposes or defies authorities, justice and dignity of the Court. It manifests itself in willful disregard or disrespect for the authority of law. It is illegal because it does not obey or respect the rules of law court as explained in Pupils Law Dictionary by Jeralled (Kathelline Hill) there are essentially two type of contempt: (i) being rude, disrespectful to the Judge or causing a disturbance in the court room after being warned by the Judge (ii) willful failure to obey the order of the court. No doubt, this court has powers to proceed under the Central Administrative Tribunal, Contempt of Courts (CAT) Rules, 1992. However, where there have been efforts to comply with the orders of the court and there is no willful disrespect to be made out, proceedings under Contempt of Courts Act will not sustain. If there be disputes regarding the degree of compliance or the extent of compliance, the proper forum where such matters are to be agitated are in the form of a fresh OA challenging the decision. Reference in this regard may be made to the judgment of the Apex Court in JS Parihar (supra) wherein it was alleged that the seniority list prepared by the respondents was not as per directions of the court, which would amount to willful disobedience. The Apex Court after hearing the parties held as under:-
5. The question then is : whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S. K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7- 1991. Subsequently promotions came to be made. The question is : whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may he right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.
11. We further find that the Honble Supreme Court relying upon the decisions in JS Parihar (supra) and State of Haryana & Ors. Vs. MP Mohla (supra), has held that where a subsequent cause of action has arisen in a matter of implementation of a judgment, a fresh writ petition may be filed as a fresh cause of action has arisen.
12. In view of the above facts and the submissions of parties, we are of the opinion that it would be difficult to hold that the respondents have willfully and intentionally disregarded the direction in the order dated 04.08.2010 passed in OA No.2296/2009, and thus are guilty of committing contempt of this Court. As noticed above, prima facie, as has been alleged, there are disputes regarding the degree of compliance, for which liberty is given to the applicants to file fresh OA raising all points, but contempt cannot be maintained. We, therefore, without expressing any opinion on the merit of the submissions and contentions raised on both sides, provide that it would be open to the applicants to file fresh OA, if they are still aggrieved by the office order dated 12.10.2012 wherein all these submissions can be gone into but it does not come within the scope of contempt jurisdiction.
13. With the above order, the Contempt Application is closed with the above liberty. Notice issued to the respondent stands discharged.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Member (J) /lg/